VAUGHTON & RANDLE (No.2)
[2012] FMCAfam 490
•1 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAUGHTON & RANDLE (No.2) | [2012] FMCAfam 490 |
| FAMILY LAW – Contravention application relating to parenting orders – contemnor claims that Court did not intend period of time-spent to occur – legislative provisions – contravention proven. |
| Family Law Act 1975, ss.70NAC, 70NAE, 70NF & 70NAF |
| Applicant: | MR VAUGHTON |
| Respondent: | MS RANDLE |
| File Number: | ADC 3046 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 7 March 2012, 16 April 2012 & 7 May 2012 |
| Date of Last Submission: | 7 May 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 1 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Adey Lawyers |
| The Respondent: | In person |
ORDERS
That the Court finds that the mother on 12 November 2011 contravened without a reasonable excuse paragraph 4(b) of the orders of the Court of 28 March 2011.
IT IS NOTED that publication of this judgment under the pseudonym Vaughton & Randle (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3046 of 2010
| MR VAUGHTON |
Applicant
And
| MS RANDLE |
Respondent
REASONS FOR JUDGMENT
On 7 March 2012 I heard evidence from the parties in relation to a number of contravention applications.
I found the mother had contravened orders of the Court in the manner alleged by the father in an application filed on 15 February 2012.
With respect to his application filed on 23 November 2011 to have her dealt with for contravening orders of the Court I adjourned that to a date to be fixed pending receipt of transcript of court hearings of 22 September 2011 and 1 November 2011.
Those transcripts were subsequently obtained.
On 8 March 2012 I disqualified myself from further hearing of the substantive applications of the parties for parenting orders and of any interim or interlocutory applications. I adjourned this matter again to 16 April 2012. I heard submissions on that day. It was further adjourned to 7 May 2012 when I reserved my determination.
This is my Judgment in respect of the contravention application filed on 23 November 2011 and the Reasons for such determination.
The father alleged in his application that on 12 November 2011 at 10:00am at the Children’s Contact Service at [H] the mother failed to present the child [X] to the father in order for the child to spend time with the father from 10:00am on that day to 5:00pm on the following day in accordance with my order of 28 March 2011.
My orders of 28 March 2011 provided in paragraph 4(b) that the mother do all such things as may be reasonably required to faciliate the child spending the following time with the child namely, from 9:00am Saturday until 5:00pm Sunday on alternate weekends commencing on 11 June 2011.
Subsequent to that order the parties registered with the [H] Children’s Contact Service and the commencment time on the Saturday by agreement was varied to 10:00am and concomitantly the conclusion time on the Sunday was varied to 6:00pm.
The weekend of 12 November 2011 was, it was agreed, a weekend upon which the mother was obliged to give time-spent in accordance with the order. In other words, it fell in with the cycle of weekends.
There was no dispute on the part of the mother that she did not give the time-spent on that date and at that time but there is a dispute as to whether she was obliged to give the time-spent on that weekend.
To understand her argument I need to note two other orders of the Court.
On 22 September 2011 I made certain orders at the conclusion of the evidence taken on that day and the interim arguments conducted but I formally noted a matter prior to the making of orders. The notation reads as follows:
UPON NOTING that the terms of the existing orders will continue SAVE that the period of time-spent to occur on 29 October 2011 will now occur on 5 November 2011
The proceedings were adjourned to 1 November 2011 at 2:15pm to deal with interim issues and trial directions.
That notation arose because during the course of the evidence taken on that day the mother agreed that she would give time-spent on 5 November 2011. That was the weekend of the father’s wedding and the father was desirous of the child participating in the wedding. Time-spent was due on 29 October 2011 but was not to occur because of the mother’s preparedness to accommodate the wedding.
Of course the corollary of that arrangement was that preceding 5 November 2011 time-spent would not occur for three weeks. The intention was that it would occur on two consecutive weeks following three weeks when it did not occur. That emerges clearly from a reading of the transcript of 22 September 2011.
On 1 November 2011 I made orders which specified the time-spent which was to occur on the weekend of 5 November 2011. There was a variation to the usual commencement and conclusion times. It started at 8:00am on the Saturday and concluded at 4:00pm on the Sunday. Handover at those times occurred at the [omitted] Police Station. I say there was a variation but, of course, this was a fresh order in the sense that time-spent would not have otherwise occurred on this weekend if I had not ordered it.
I also made a series of orders on 1 November 2011 specifying time-spent during the Christmas school holiday period.
I dealt with sundry other interim applications.
The mother gave the time-spent on the weekend commencing on 5 November 2011 she did not give the time-spent on the weekend commencing on 12 November 2011.
Applications to deal with persons for failing to comply with parenting orders are dealt with in Division 13A of the Family Law Act 1975 (as amended) (“the Act”).
Section 70NAC of the Act provides that:
A person is taken for the purposes of this Division to have contravened an order under this Act effecting children if, and only if;
(a) where the person is bound by the order – he or she has;
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order…
The applicant must establish that the person has contravened the order without a reasonable excuse.
Section 70NAE of the Act sets out circumstances in which a person may be taken to have had a reasonable excuse for contravening an order (though the section makes clear that reasonable excuse is not limited to the specified matters).
Section 70NAE(2) of the Act provides:
A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act effecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
These sections are at the heart of the mother’s defence to this application.
She says that she did not attempt to give compliance with the order on 12 November 2011 because she thought that there was no obligation to give the time-spent on that day.
Of course, she could not point to any order which excused her from the obligation to give time-spent in accordance with the cycle of time-spent established by the order of 28 March 2011. There was no suspension of the operation of that order on that weekend. The Court had noted the agreement to suspend the operation of the order as it related to the previous weekend of the cycle. As noted above the notation to the orders of 22 September 2011 provided that the time-spent that was to occur on that weekend would now occur on 5 November 2011. The order was not formally suspended for the weekend of 29 October 2011 but by the time the Court reconvened on 1 November 2011 that time had passed and the time-spent had not been given and no issue arose in relation to that because it was now to occur on 5 November 2011. She well knew she was excused from giving the time-spent on the weekend of 29 October 2011 because it was now due on the following weekend. She also well knew that the effect of this variation to accommodate the wedding had been that there were three consecutive weekends when time-spent had not occurred.
The rationale for the arrangements made through the mechanism of the Court notation of 22 September 2011 and the Court orders of 1 November 2011 was that there would be three weeks without time-spent and then two weeks when the time-spent would occur consecutively.
As noted above, a fair reading of the transcript of 22 September 2011 makes this abundantly clear.
The mother’s defence was to say that she came to the view that time-spent was not due on 12 November 2011, not because the Court so ordered, but because she inferred from the other orders made by the Court on 1 November 2011 that the Court did not intend time-spent to occur on consecutive weekends.
Firstly, the text of the order relating to Christmas holidays does not bear that out. The father exercised time-spent on 24 and 25 December and then 26 and 27 December.
Of course the mother says that she inferred that the Court would not want to put the child to the inconvenience of travelling by air on two consecutive weekends from Tasmania to South Australia and the orders that I made on 1 November 2011, catering as they did for the specific circumstances of the Christmas period when the mother was in Adelaide for a period of approximately a fortnight, constituted special arrangements.
That is so. But the mother cannot make the argument both ways. Paragraph 1(b) of the orders of 1 November 2011 do not involve the usual alternate weekend contact requiring interstate travel. There is no point in attempting to infer from the structure of those orders any basis for excusing herself from the plain obligations she had under the orthodox weekend time-spent orders.
I did not accept that the mother genuinely believed that the Court intended the orders to operate in the way she has claimed. She well knew that the Court was scrupulous in providing a high degree of particularity in relation to the orders because of the history of non-compliance and disputation. She well knew that the consecutive weekends of time-spent were ordered by the Court following upon three consecutive weekends when they had not occurred.
The mother’s failure to comply with the order upon this alleged misunderstanding of the Court’s intention was opportunistic. I find that she deliberately failed to comply with the order.
She may well have her own subjective views as to whether the air travel is onerous upon a child of [X]’s age. She has put that view to me before in the context of other applications and I have not accepted it. I accept that the air travel is inconvenient to her and possibly for the child but that inconvenience is a function of her decision making in 2010 in unilaterally relocating to Tasmania. I have traversed these matters in many interlocutory decisions before and I do not propose to go through them again.
In determining this application I have applied the civil standard of proof prescribed by s.70NF of the Act. When we reach the penalty phase of the hearing and if I propose to make any of the orders specified by s.70NAF(3) of the Act the evidence will need to be reviewed in accordance with the criminal standard but of course I am yet to hear from the parties in relation to matters of penalty.
I find the contravention proven.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 1 June 2012
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